SURVEY OF RECENT DEVELOPMENTS IN
INDIANA EVIDENCE LAW
SEAN P. O’BRIEN *
INTRODUCTION
This survey nominally covers cases decided between October 1, 1996, and
October 1, 1997. However, some of the cases discussed will fall outside of that
period. Indiana appellate courts handed down many important decisions this past
year. As in past years, the organization of this survey will mirror that of the
Indiana Rules of Evidence.
I. MISCELLANEOUS EVIDENCE ISSUES
A. Circumstantial Evidence in Criminal Cases
In the space of a little over a year, the Indiana Supreme Court issued two
inconsistent opinions concerning circumstantial evidence and the burden of proof
in criminal cases. In Lloyd v. State,1 the court determined that a defendant is
entitled to a jury instruction “requiring [the jury to find] the exclusion of every
reasonable hypothesis of [the defendant’s] innocence when the evidence is purely
circumstantial” before convicting the defendant.2 In Saylor v. State,3 the court
stated, “When a verdict rests on circumstantial evidence, this Court need not find
that the circumstantial evidence is adequate to overcome every reasonable
hypothesis of innocence, but only that inferences may reasonably be drawn to
enable the jury to find guilt beyond a reasonable doubt.”4 These cases are
irreconcilable,5 and they have the potential to cause confusion, particularly
because Saylor (the later decided of the two) does not mention Lloyd. In the
* J.D., summa cum laude, 1997, Indiana University School of Law—Indianapolis. Editorin-Chief, Volume 30, Indiana Law Review. The author is currently a law clerk for the Honorable
Thomas G. Fisher, Judge, Indiana Tax Court. The views expressed in this survey are the author’s
alone and do not reflect the views of the Indiana Tax Court.
1. 669 N.E.2d 980 (Ind. 1996).
2. Id. at 985 (citing Nichols v. State 591 N.E.2d 134 (Ind. 1992)); see also Cox v. State, 475
N.E.2d 664, 667 (Ind. 1985); Cantrell v. State, 673 N.E.2d 816, 819 (Ind. Ct. App. 1996);
McDonald v. State, 547 N.E.2d 294, 296-97 (Ind. Ct. App. 1989).
3. 686 N.E.2d 80 (Ind. 1997).
4. Id. at 84; see also Fox v. State, 560 N.E.2d 648, 654 (Ind. 1990); Washington v. State,
685 N.E.2d 724, 728 (Ind. Ct. App. 1997); Jernigan v. State, 612 N.E.2d 609, 613 (Ind. Ct. App.
1993).
5. The cases do have a somewhat different posture. Lloyd involved a claim that a defense
attorney’s failure to request the instruction constituted ineffective representation of counsel, and
Saylor involved the defendant’s claim that the evidence did not support the verdict. The difference
is of no consequence. A defendant is only entitled to an instruction that accurately states the law.
See Battles v. State, 688 N.E.2d 1230, 1232 (Ind. 1997); Abdul-Musawwir v. State, 674 N.E.2d
972, 974 (Ind. Ct. App. 1996). Therefore, the question posed to both courts was the same.
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author’s opinion, the rule in Saylor is sounder because it better reflects an
appellate court’s deference to the jury’s role as the finder of fact.6 Regardless of
whether the evidence supporting the verdict of guilt is direct, circumstantial or
both, the test for whether the evidence is sufficient to support the conviction
should be: Could the jury have reasonably found guilt beyond reasonable doubt
from the evidence and all reasonable inferences drawn therefrom?7
Circumstantial evidence is not inherently less or more reliable than direct
evidence;8 therefore, appellate courts should review verdicts supported solely by
circumstantial evidence by the same standard as verdicts supported by direct
evidence.
B. Admissibility of Evidence that “Another Guy Did It” in Criminal Cases
In Joyner v. State,9 the court evaluated a defendant’s claim that the trial court
improperly excluded evidence tending to show that another person committed the
murder for which the defendant was on trial. Under the rule established in
Burdine v. State,10 evidence demonstrating that a third party committed the
charged crime must “directly connect the third party to the crime.”11 Rather than
following Burdine, the Joyner court declared, “[O]ur review is guided by the
Indiana Rules of Evidence. . . .”12 The court then found that the proffered
evidence met the logical relevance test of Rule 401: “Evidence is relevant when
it has ‘any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be
without the evidence.”13 In Joyner, a good deal of evidence suggested that
6. Some jurisdictions follow the rule espoused in Lloyd. See, e.g., Roper v. State, 429
S.E.2d 668, 669 (Ga. 1993); State v. Moore, 880 P.2d 238, 241 (Idaho 1994); State v. Duguay, 698
A.2d 5, 8 (N.H. 1997) (applying the rule to each element of offense); State v. Breed, 399 N.W.2d
311, 312-13 (S.D. 1987) (holding failure to give instruction fundamental error). Other jurisdictions
follow the rule in Saylor. See, e.g., United States v. Armstrong, 16 F.3d 289, 292 (8th Cir. 1994);
Commonwealth v. Merola, 542 A.2d 249, 252-53 (Mass. 1989); State v. Jenks, 574 N.E.2d 492,
498 (Ohio 1991). See generally Carroll J. Miller, Annotation, Modern Status of Rule Regarding
Necessity of Instruction on Circumstantial Evidence in Criminal Trial—State Cases, 36 A.L.R.4TH
1046 (1981 & Supp. 1997).
7. See Holland v. United States, 348 U.S. 121, 139-40 (1954); Dirring v. United States, 328
F.2d 512, 515 (1st Cir. 1964). But cf. United States v. Braxton, 877 F.2d 556, 562-63 (7th Cir.
1989) (instruction similar to that in Lloyd permissible but not required).
8. See United States v. O’Brien, 119 F.3d 523, 533 (7th Cir. 1997); Broecker v. State, 314
N.E.2d 428, 431 (Ind. App. 1974); State v. Sanborn, 564 N.W.2d 813, 816 (Iowa 1997);
Commonwealth v. Dostie, 681 N.E.2d 282, 284 (Mass. 1997); Sutherland v. State, 944 P.2d 1157,
1161 (Wyo. 1997).
9. 678 N.E.2d 386 (Ind. 1997).
10. 515 N.E.2d 1085 (Ind. 1987).
11. Id. at 1094 (citing Brown v. State, 416 N.E.2d 828 (Ind. 1981)).
12. Joyner, 678 N.E.2d at 389.
13. Id. (quoting IND. R. EVID. 401).
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another person committed the murder in question. The trial court improperly
excluded this evidence.14 Because this was not harmless error, the Joyner court
remanded for a new trial.
C. Standard of Review
In general, Indiana appellate courts review the admissibility of evidence on
an abuse of discretion standard. This standard is used even when the question is
a purely legal one.15 One case, Stahl v. State,16 broke from that general rule. In
Stahl, the Indiana Supreme Court evaluated the admissibility of certain hearsay
evidence. The Stahl court rejected the abuse of discretion standard of review.17
Stahl is interesting because the court examines the nature of the question
before the appellate court in determining the admissibility of evidence. Where
legal questions are at issue, no deference should be afforded to the trial court.
Often, evidentiary issues are questions of law. Consequently, the “one size fits
all” abuse of discretion standard of review may be inappropriate in many cases.
D. Polygraph Evidence
18
In Sanchez v. State, the court reviewed the defendant’s contention that the
trial court failed to instruct the jury on its consideration of polygraph evidence.
At trial, the defendant did not tender an instruction on this subject. In evaluating
14. Id. at 390.
15. See, e.g., Heavrin v. State, 675 N.E.2d 1075, 1083 (Ind. 1996) (Rule 404(b)); State v.
Eaton, 659 N.E.2d 232, 236 (Ind. Ct. App. 1995) (determination of logical relevance); Bates v.
State, 650 N.E.2d 754, 757 (Ind. Ct. App. 1995). See also Tammy J. Meyer & Dina M. Cox,
Recent Developments in Indiana Tort Law, 30 IND. L. REV. 1317, 1319 (1997) (criticizing Eaton);
Edward F. Harney & Jennifer Markavitch, 1995 Survey of Indiana Evidence Law, 29 IND. L. REV.
887, 891 n.41 (1996) (criticizing Bates). Heavrin merits additional discussion. Obviously,
evidence admitted under Rule 404(b) will have to satisfy Rule 403. A trial court’s decision under
Rule 403 is reviewed for an abuse of discretion. However, the question of whether evidence
violates Rule 404(b) (without reference to Rule 403) is a question of law. See United States v.
Merriweather, 78 F.3d 1070, 1074 (6th Cir. 1996). As a practical matter, though, the Heavrin
approach causes little difficulty.
16. 686 N.E.2d 89 (Ind. 1997).
17.
Our standard of review of a trial court’s findings as to the essential elements of
admissibility is sometimes described as an abuse of discretion. Because the predicates
or foundational requirements to admissibility often require factual determinations by the
trial court, these findings are entitled to the same deference on appeal as any other
factual finding, whether that is described as a “clearly erroneous” or abuse of discretion
standard. However, the ultimate question in this case is the interpretation of the
language of a rule of evidence that presents a question of law for this Court.
Id. at 91 (citations omitted).
18. 675 N.E.2d 306 (Ind. 1996).
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the defendant’s contention, the court first reiterated four prerequisites for the
admission of polygraph evidence.19 The court then focused on the failure to
instruct the jury. The court held that, because the defendant had waived the issue
by not tendering an instruction and the failure to instruct was not fundamental
error, reversal was not warranted.20
Sanchez is significant for two reasons: 1) it reaffirms prior case law (i.e., preRules case law) on this issue, and 2) it applies a fundamental error standard to at
least one of the prerequisites to the admission of polygraph evidence. Therefore,
in most cases, procedural missteps with respect to this evidence likely will not
be deemed fundamental error. Sanchez also provides an excellent discussion of
the difference between fundamental errors and errors that require objection to be
preserved for appeal.21
E. The Doctrine of Completeness
In Stanage v. State,22 the court dealt with the doctrine of completeness as
incorporated into Rule 106.23 In Stanage, redacted portions of the defendant’s
videotaped statement were admitted as impeachment evidence. The defendant
moved to admit the entire videotaped statement. The trial court denied the
defendant’s request because the videotape contained portions prejudicial to the
defendant. The Stanage court held that the trial court properly denied the
defendant’s request because “[i]mmaterial, irrelevant or prejudicial material must
be redacted from the portions of the statements which are admitted.”24
As a general rule, the holding in Stanage is unobjectionable, but in this case
it seems to be at odds with traditional notions of the adversarial system. Usually,
a trial court should not be concerned with the possibility of prejudice to the party
seeking to admit evidence. In this case, it was for the defendant’s attorney to
19.
1) that the prosecutor, defendant, and defense counsel all sign a written stipulation
providing for the defendant’s submission to the examination and for the subsequent
admission at trial of the results; 2) that notwithstanding the stipulation, the admissibility
of the test results is at the trial court’s discretion regarding the examiner’s qualifications
and the test conditions; 3) that the opposing party shall have the right to cross-examine
the polygraph examiner if his graphs and opinions are offered into evidence; and 4) that
the jury be instructed that, at most, the examiner’s testimony tends only to show whether
the defendant was being truthful at the time of the examination and that it is for the jury
to determine the weight and effect to be given such testimony.
Id. at 308 (citing Davidson v. State, 558 N.E.2d 1077, 1085 (Ind. 1990)).
20. Id. at 308-09.
21. Id.
22. 674 N.E.2d 214 (Ind. Ct. App. 1996).
23. “When a writing or a recorded statement or part thereof is introduced by a party, an
adverse party may require at that time the introduction of any other part or any other writing or
recorded statement which in fairness ought to be considered.” IND. R. EVID. 106.
24. Stanage, 674 N.E.2d at 216 (citing Evans v. State, 643 N.E.2d 877, 881 (Ind. 1994)).
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calculate the prejudice to his client when he asked the trial court to admit the rest
of the videotape. Also, the defendant would not have been able to claim
prejudice on appeal—a party who invites error will not be heard to complain of
that error on appeal. The defendant therefore should have been allowed to have
the jury pass on the redacted portions of the videotape.25
II. JUDICIAL NOTICE
In Mayo v. State, 26 a defendant argued that there was no evidence from
which the jury could conclude that one of his prior convictions (for escape) was
a felony for purposes of Indiana’s habitual offender statute.27 In finding that
there was “no error on this issue,”28 the court took judicial notice that the escape
conviction constituted a felony under Indiana’s habitual offender statute. This
was incorrect.
First, the court treated the issue of whether the escape conviction constituted
a felony as one of law.29 Although this is a natural conclusion (after all, a person
can simply look up the sentence for escape in the Alabama Code), it is not a
correct one. In order to adjudge a person a habitual offender, a trier of fact must
find that the person committed two previous felonies.30 Therefore, the issue of
whether the convictions constituted felonies was a question of fact, not a
question of law.
Second, the court ignored Rule 201(g), which provides: “In a criminal case,
the court shall instruct the jury that it may, but is not required to, accept as
conclusive any fact judicially noticed.”31 A habitual offender proceeding is
clearly “a criminal case.” This means that the taking of judicial notice of
adjudicative facts (but not legislative facts32 ) is improper on appeal because the
jury, discharged after the trial, would have no opportunity to pass on the fact
judicially noticed.33 The jury has the power to refuse to find indisputable facts.
25. Cf. Humphrey v. State, 680 N.E.2d 836, 839-40 (Ind. 1997) (decision whether to request
limiting admonition is best left to party against whom evidence is offered).
26. 681 N.E.2d 689 (Ind. 1997).
27. IND. CODE § 35-50-2-1(b) (1993) (defining felony conviction for purposes of the statute).
28. Mayo, 681 N.E.2d at 693.
29. Id. (citing IND. R. EVID. 201(b), which allows a court to take judicial notice of the law of
any state).
30. IND. CODE § 35-50-2-8(d) (Supp. 1997).
31. IND. R. EVID. 201(g).
32. See United States v. Gould, 536 F.2d 216 (8th Cir. 1976). In Gould, the court held that
a court may take judicial notice of a legislative fact in a criminal case without instructing the jury
that it could reject that fact. Id. at 221; see also United States v. Hernandez-Fundora, 58 F.3d 802,
811-12 (2d Cir. 1995) (discussing difference between legislative and adjudicative facts).
33. See United States v. Jones, 580 F.2d 219 (6th Cir. 1978) (holding that the appellate court
could not cure a lack of proof that telephone company was a common carrier engaged in interstate
commerce by taking judicial notice on appeal).
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It is of no consequence that the jury in Mayo adjudged the defendant a
habitual offender. It did so on insufficient evidence; therefore, that adjudication
cannot stand. The jury’s determination cannot subsequently be made valid by the
taking of judicial notice on appeal. Defendants have a statutory right to have a
jury pass on whether they are habitual offenders.34 This means that the
prosecution must put forth sufficient evidence from which the jury can determine
beyond a reasonable doubt that a particular defendant is a habitual offender. If
the prosecution does not (and just like any other criminal case where there is
insufficient evidence to support a verdict of guilt) do so, the defendant cannot be
adjudged a habitual offender. Restated, the prosecution has to make the proper
case to the jury, and an appellate court should not make the prosecution’s case
on appeal.
It is very unlikely that anyone will be too troubled by this result. The
defendant in Mayo was convicted of a brutal crime. Moreover, had the court
vacated the habitual offender adjudication, it would have done so on a so-called
technicality. That said, the Mayo decision is contrary to law and ought not stand.
III. ARTICLE IV
A. Rule 404(b)
Because Rule 404(b) is so often an issue (particularly in criminal cases) there
are many appellate decisions construing the rule. This has unfortunately
produced a lack of uniformity in the rule’s application.
At the end of the survey period, the Indiana Supreme Court decided Goodner
v. State,35 which effectively overruled a line of court of appeals decisions. In
Goodner, the Indiana Supreme Court reaffirmed Wickizer v. State36 and its
approach to evidence admitted under the “intent exception” to Rule 404(b).37
However, the Goodner court rejected the Wickizer approach to evidence admitted
under other “exceptions” to Rule 404(b).38
In Wickizer, the court held that “[t]he intent exception in Evid.R.404(b) will
be available when a defendant goes beyond merely denying the charged
culpability and affirmatively presents a claim of particular contrary intent.”39
Various panels of the court of appeals had applied this approach to all of Rule
404(b)’s listed purposes.40 Goodner has put an end to the application of the
34. IND. CODE § 35-50-2-8(d) (Supp. 1997).
35. 685 N.E.2d 1058 (Ind. 1997).
36. 626 N.E.2d 795 (Ind. 1993).
37. Goodner, 685 N.E.2d at 1061.
38. Id. at 1061 n.3.
39. Wickizer, 626 N.E.2d at 799; see also Smith v. State, 678 N.E.2d 1152, 1157 (Ind. Ct.
App. 1997) (following Wickizer).
40. See Sundling v. State, 679 N.E.2d 988, 993 (Ind. Ct. App. 1997); Reynolds v. State, 651
N.E.2d 313, 316 (Ind. Ct. App. 1995); Bolin v. State, 634 N.E.2d 546, 550 (Ind. Ct. App. 1994);
cf. Carson v. State, 659 N.E.2d 216, 219 (Ind. Ct. App. 1995) (rejecting broad interpretation of
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Wickizer approach to the other listed purposes in Rule 404(b). Accordingly,
cases doing so should not be considered accurate statements of the law.
However, the Goodner opinion contains some errors in its analysis. First, the
court refers to an “intent exception.”41 This is incorrect.42 There are no
exceptions to Rule 404(b): the rule flatly bars the use of other acts evidence to
prove action in conformity therewith.43 Inasmuch as courts admit other acts
evidence to prove intent, motive, et al., the evidence is not admitted under an
exception to Rule 404(b). This, however, is not a major concern, in large part
because the list of “exceptions” to Rule 404(b) is neither exclusive nor
exhaustive.44 Therefore, the admissibility of other acts evidence is not tied to the
offeror’s ability to shoehorn the evidence into one of Rule 404(b)’s listed
purposes.45
motive “exception”); Moore v. State, 653 N.E.2d 1010, 1016 (Ind. Ct. App. 1995) (court distrustful
of evidence offered to prove motive).
41. Goodner, 685 N.E.2d at 1061.
42. See Jeffrey O. Cooper, Recent Developments Under the Indiana Rules of Evidence, 30
IND. L. REV. 1049, 1051 n.14 (1997). Professor Cooper’s Survey contains an excellent analysis of
some Rule 404(b) cases; see also Lay v. State, 659 N.E.2d. 1005 (Ind. 1995). In that case, Justice
Sullivan correctly observes that it is incorrect to refer to Rule 404(b) exceptions because Rule
404(b) is a rule of inclusion. Id. at 1010 n.5.
43. The heading of Rule 404 contains a reference to exceptions. The exceptions, however,
are to Rule 404(a), not to Rule 404(b).
44. See Hardin v. State, 611 N.E.2d 123, 129 (Ind. 1993); see also Ross v. State, 676 N.E.2d
339, 346 (Ind. 1996) (relationship between victim and defendant is a proper purpose under Rule
404(b)).
45. Focusing on the enumerated purposes may have the effect of improperly shifting the
inquiry away from whether the other acts evidence constitutes character evidence. For example,
if the other acts evidence is offered to prove motive, then the court may simply ask whether the
evidence is probative of motive without asking whether the evidence is mere character evidence
barred by Rule 404(b). In those cases, slogans may substitute for analysis.
This occurred in Tompkins v. State, 669 N.E.2d 394 (Ind. 1996). In Tompkins, the Indiana
Supreme Court held that certain other acts evidence showing a white defendant’s racism was
probative of his motive in the brutal murder of a black victim. Id. at 398. There is little doubt that
this conclusion was correct; certainly, this evidence demonstrated a motive for the crime. However,
the court did not analyze whether the evidence was mere character evidence. (Mere character
evidence may be characterized as motive—a racist and violent character can definitely show motive.
That, however, does not make the evidence admissible.) In that respect, the Tompkins court erred.
The Tompkins court stated that certain evidence “show[ed] a desire to engage in violence towards
African-Americans.” This sounds awfully close to an inference of propensity, which is barred by
Rule 404(b). Tompkins was aptly criticized by Professor Cooper in last year’s survey. Cooper,
supra note 42, at 1052-55.
The real problem with Tompkins is that it confuses logical relevance with legal relevance. This
exemplifies the danger of other acts evidence. Often, the inference of bad conduct from bad
character is extremely obvious and compelling. Certainly, the actions of the defendant in Tompkins
were explained by his violent racism. Rule 404(b), however, is supposed to erect a barrier to this
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Second, and more importantly, the Gardner court should not have reaffirmed
Wickizer because Wickizer is fundamentally flawed and should be abandoned.
The Wickizer court was rightly concerned about the dangers46 of other acts
evidence, particularly other acts evidence offered as probative of intent.
Accordingly, the court held that other acts evidence offered to prove intent will
only be permitted if the defendant goes beyond merely denying the crime charged
but claims a specific contrary intent.
This holding is problematic for two reasons. First, the plain language of the
rule does not predicate the admissibility of other acts evidence on the defendant
first affirmatively making a claim of a contrary intent.47
Second, this rule is inconsistent with the operation of Rule 404(b). Rule
404(b) excludes other acts evidence only if that evidence’s sole function is to
prove character and action in conformity therewith.48 Therefore, the question is
not whether the defendant makes a claim of contrary intent, but whether the
evidence can prove something other than character.49
The rule in Wickizer may be the result of an empirical determination by the
court.50 Where a defendant does not dispute intent or offer evidence (or
argument) of a specific contrary intent, it is unlikely that other acts evidence
offered to demonstrate intent will be very probative. The defense will, in effect,
concede that whoever committed the crime intended it. Identity, not intent, will
be the issue. Consequently, there is little need for this evidence; its probative
value is low. It would therefore be excluded by Rule 403 in almost every case.
Because the rules as written already dictate the result in Wickizer, there was no
inference. See generally Lannan v. State, 600 N.E.2d 1334 (Ind. 1992).
This is not to say that all evidence that may have the effect of demonstrating a racist character
should be barred. Where other acts evidence shows character but has relevance with respect to
something other than character, Rule 404(b) operates to admit the evidence subject, of course, to
Rule 403. See Cliver v. State, 666 N.E.2d 59, 62-63 (Ind. 1996). Kimble v. State, 659 N.E.2d 182
(Ind. Ct. App. 1995), is an excellent example of a proper analysis of Rule 404(b) and this type of
evidence.
46. The two main dangers of other acts evidence are: (1) that the jury may convict the
defendant out of a bare desire to punish for the uncharged misconduct and (2) that the jury will
conclude that the defendant is of bad character and for that reason committed the charged crime.
Wickizer, 626 N.E.2d at 797.
47. See Cooper supra note 42, at 1052 n.15.
48. See Bacher v. State, 686 N.E.2d 791, 799 (Ind. 1997) (citing Hardin v. State, 611 N.E.2d
123, 128 (Ind. 1993)).
49. The approach in Wickizer also tends to focus on labeling the evidence as intent, motive
et al. This is problematic because the listed proper purposes are convenient reference points, not
rigid classifications. Evidence that is probative of intent will usually be probative of some other
proper purpose. Therefore, it really does not make sense to label the evidence for purposes of
adopting a specialized rule of admissibility.
50. A court’s observation that summary judgment is rarely appropriate in negligence cases
is an empirical observation. In close cases, this empirical observation may have an effect on the
outcome.
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need to create an idiosyncratic rule.51 Therefore, that rule ought to be abandoned.
Although Hicks v. State52 was decided after the survey period, it will be
discussed in this survey because of its importance. In Hicks, the defendant was
charged with the murder of his girlfriend and the feticide of her unborn child.
The trial court admitted evidence showing that the defendant had beaten the
victim in the past and that the two had a violent relationship. The court
concluded that evidence showing the defendant’s hostility towards the victim was
relevant but that some of the evidence failed the Rule 403 balancing test because
of its low probative value and highly prejudicial effect.53
Hicks contains some excellent analysis. First, Hicks strongly reaffirms prior
51. This is not to say that the defendant “making something an issue” does not affect the
admissibility of evidence. Where the defendant offers evidence (or argument) on a particular issue,
there will be a greater need for other acts evidence relevant to that issue. This greater need would
be properly considered by a trial judge in balancing the probative value versus the danger of unfair
prejudice of the proffered evidence.
An example of where the court should have considered the fact that a party made something
an issue on the determination of admissibility is Swain v. State, 647 N.E.2d 23 (Ind. Ct. App. 1995).
In Swain, the defendant attempted to show that the police officer who arrested him was racially
biased. As a result, the prosecution introduced evidence that the defendant had four previous
convictions for dealing in cocaine to explain the officer’s interest in the defendant. On appeal, the
court held that the evidence was inadmissible because it was “irrelevant.”
This holding is problematic for two reasons. First, the conclusion that the evidence was
irrelevant is wrong. The Swain court evaluated the relevancy of the evidence under Rule 401,
which is a logical relevance test. Certainly, the fact that the defendant had been convicted of
dealing cocaine previously was logically relevant to the determination of whether he possessed
cocaine on the occasion in question. See Lannan v. State, 600 N.E.2d 1334, 1337 (Ind. 1992); see
also United States v. Brewer, 43 M.J. 43, 48 (U.S.A.F. Ct. App. 1995) (Crawford, J., concurring)
(discussing difference between logical relevance of Rule 404(b) evidence and its legal relevance);
State v. Blackmon, 941 S.W.2d 526, 529 (Mo. Ct. App. 1996) (same); People v. Vandervliet, 508
N.W.2d 114, 120 (Mich. 1993). Although the evidence was logically relevant under Rule 404(b),
the evidence was not admissible to show a propensity for possessing cocaine.
Second, the court did not take into consideration the fact that the defendant made the police
officer’s motive in arresting the defendant an issue. Certainly, the prosecution was entitled to rebut
the not so subtle suggestion that the defendant was singled out because of his race. Similarly, the
court’s Rule 403 analysis is flawed. The court is required to evaluate the possibility of unfair
prejudice. In Swain, the defendant invited the prosecution to produce evidence concerning the
police officer’s motive. The prosecution did so. The fact that the evidence the prosecution chose
to present did create the possibility of prejudice (i.e., that the jury would convict on an improper
basis, namely the defendant’s propensity to possess cocaine) should not alter its admissibility.
Because the defendant made the police officer’s motive an issue, he should not have been heard to
complain of the possibility of prejudice in the prosecution’s rebuttal. But cf. State v. Lawton, 667
A.2d 50, 55 (Vt. 1995) (prosecution may not engage in “overkill” where defendant “opens the
door”).
52. 690 N.E.2d 215 (Ind. 1997).
53. Id. at 223.
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case law holding that other acts evidence tending to show hostility between the
victim and the defendant is admissible under Rule 404(b).54 Second, Hicks also
properly notes that “[t]he list of other purposes is illustrative not exhaustive.”55
Third, the court’s analysis in Hicks also correctly rejects the Seventh
Circuit’s four-part test for the admissibility of other acts evidence.
Under this test, to be admissible: (1) the evidence must be directed
toward establishing a matter in issue other than the defendant’s
propensity to commit the charged act; (2) the prior bad act must be
similar enough and close enough in time to be relevant to the matter in
issue; (3) the evidence must be sufficient to support a finding by the jury
that the defendant committed the prior bad act; and (4) the proponent of
the evidence must show that the probative value of the prior bad act is
not substantially outweighed by the prejudicial effect on the defendant.56
The Hicks court correctly concluded that dissimilarity and remoteness in time do
not erect a per se bar to other acts evidence; instead, they are factors to be
considered in the determination of the probative value of the evidence.57 “In
short, admissibility hinges on relevance, not a litmus test based on an isolated
factor—remoteness, similarity, or anything else—that may bear on relevance.”58
The decision is also significant because it follows Huddleston v. United
States.59 In all Rule 404(b) cases, it must be shown that the person against whom
the evidence is offered actually committed the other act. If the person did not
commit the act, the evidence is irrelevant. Huddleston dealt with the standard for
the trial court’s preliminary determination that the person committed the other
act. The Court concluded that the evidence “should be admitted if there is
sufficient evidence to support a finding that the [person] committed the [other]
act.”60 This is to be contrasted with a court making a preliminary finding by a
preponderance of evidence that the person committed the other act.61 If a
reasonable jury could find that the person committed the other act, it should be
permitted to so find.
One part of the opinion is troubling. The Hicks court discusses relevance in
the context of Rule 404(b).62 This discussion has the possibility of causing some
confusion. The court is not entirely clear about whether it means logical
relevance, which is defined by Rule 401, or legal relevance.63 The distinction is
54. Id. at 222 (citing Ross v. State, 676 N.E.2d 346 (Ind. 1996)).
55. Id. at 219 (citing Hardin v. State, 611 N.E.2d 123, 129 (Ind. 1993); United States v.
Russell, 971 F.2d 1098, 1106 (4th Cir. 1992)).
56. Id. at 219.
57. Id. at 220.
58. Id.
59. 485 U.S. 681 (1988).
60. Id. at 685.
61. See IND. R. EVID. 104(a).
62. Hicks, 690 N.E.2d at 219.
63. Legal relevance is undefined by the Rules of Evidence. The term, “relevant evidence,”
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vitally important to an understanding of Rule 404(b). Character evidence barred
by Rule 404(b) is often logically relevant.64 However, it is not legally relevant.
Consequently, it is difficult to determine exactly what the court means when
it says, “The Rule [i.e. 404(b)] says that ‘other crimes, wrongs, or acts’ not
offered to prove character ‘may be admissible.’ This throws the analysis back
to Rule 402, which states that ‘all relevant evidence is admissible.’”65 If the
analysis were “thrown back” to Rule 402, then other acts evidence would only
have to satisfy a logical relevance66 test (leaving aside the Rule 403 test) to be
admissible under Rule 404(b).
The Hicks court may have been talking about the logical relevance
requirement as enforced by Rule 104(b). Obviously, it must be shown that the
defendant committed the other act. If that is not shown, the evidence does not
meet a bare logical relevance test, and is therefore barred by Rule 402. But
proving that the “defendant did it” does not guarantee admissibility under Rule
404(b). Rule 404(b) bars logically relevant evidence that only shows
propensity.67 Consequently, it must be stressed that logical relevance is a
prerequisite to the admissibility of other acts evidence, not a guarantor of its
admissibility.
In Turner v. State,68 the defendant was convicted of the murder of a Ball
State University student. On appeal, the defendant challenged the admissibility
of “prior bad acts evidence.”69 The evidence demonstrated that the defendant had
previously been forcibly ejected from a Ball State party the evening before the
murder. In response, the defendant fired a gun through a door where the party
was being held. The court found that the evidence was properly admitted
because it demonstrated the defendant’s motive. His enmity towards Ball State
students as a result of his ejection from a party helped explain why the defendant
as used in the rules, means logical relevance. This is demonstrated by an evaluation of the rules.
If “relevant evidence” meant legally relevant evidence, then the “except as otherwise provided”
clause in Rule 402 would be superfluous.
64. See generally Lannan v. State, 600 N.E.2d 1334 (Ind. 1992).
65. Hicks, 690 N.E.2d at 219.
66. The court may be thinking that Rule 402 refers to legal relevance when it uses the term
“relevant evidence.”
67. See Lannan, 600 N.E.2d at 1337 (discussing logical relevance of propensity evidence
barred by Rule 404(b)).
68. 682 N.E.2d 491 (Ind. 1997).
69. “Prior bad acts” is a convenient shorthand for evidence admissible under Rule 404(b).
It is the opinion of the author that the term should be discarded. First, Rule 404(b) does not require
that the acts be “bad.” But see Robinson v. State, 682 N.E.2d 806, 809 (Ind. Ct. App. 1997)
(strictures of Rule 404(b) apply to “any conduct of the defendant which may bear adversely on the
jury’s judgment of his character”) (quoting Kimble v. State, 659 N.E.2d 182, 185 n.5 (Ind. Ct. App.
1995) (emphasis added). See also Stevens v. State, 689 N.E.2d 487 (Ind. Ct. App. 1987). Second,
Rule 404(b) does not require that the acts in question happen before the charged crime. See United
States v. Bibo-Hernandez, 922 F.2d 1398, 1399-1400 (9th Cir. 1991); Moore v. State, 653 N.E.2d
1010, 1016 (Ind. Ct. App. 1995).
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decided to rob and kill a Ball State student.70
The Turner court also evaluated whether the evidence tended to show a plan.
In concluding that it did not, the court stated, “The prior offenses ‘[must] tend to
establish a preconceived plan by which the charged crime was committed. The
crimes must, therefore, be so related in character, time and place of commission
as to establish some plan which embraced both the prior and subsequent criminal
activity and charged crime.’”71
Turner is a perfect example of the type of evidence admissible under Rule
404(b). Often, other acts evidence is extremely probative. In this case, the
evidence really helped to explain why the defendant would choose to murder the
victim without much danger of the “forbidden inference.” The evidence showed
that the defendant was angry with Ball State students. A dislike of Ball State
students is not a character trait. Therefore, the inference that the defendant had
a motive for murdering the victim did not come from his character.72
In Hopkins v. State,73 the court evaluated the admissibility of testimony that
the defendant had been involved in drug-dealing. The defendant contended that
the testimony was admitted in violation of Rule 404(b).
In evaluating the defendant’s contention, the court first announced the rule
that other acts evidence must be examined to determine whether it is “offered to
prove something other than the defendant’s bad character or propensity to
commit the charged crime.”74 In this case, the defendant attacked the credibility
of the State’s witness by questioning the witness about the witness’ drug dealing
and drug connections. On redirect examination, the State elicited the testimony
about the defendant’s drug dealing from that witness. The court held that this
was permissible because the defendant opened the subject and because the
prosecution had stipulated that the witness was a drug dealer.
This case merits some criticism. A defendant who impeaches a witness does
not open the door for attacks on his own character.75 The law allows defendants
to vigorously cross-examine a State’s witness. Often, this vigorous crossexamination will produce unflattering information about that witness. However,
that does not give the State the license to admit evidence barred by Rule 404(b).
Finally, the court’s reference to the fact that the prosecution stipulated to the fact
that the witness was a drug dealer is questionable. There is substantial authority
for considering a defendant’s stipulation to certain items in determining the
admissibility of other acts evidence.76 However, this proposition should not be
70. Turner, 682 N.E.2d at 496.
71. Id. at 496 n.5 (quoting Malone v. State, 441 N.E.2d 1339, 1347 (Ind. 1982)).
72. There are other examples. Evidence that a defendant did not carry auto insurance would
be very probative of motive in a prosecution for leaving the scene of an accident. It would explain
why the defendant left the scene.
73. 668 N.E.2d 686 (Ind. Ct. App. 1996).
74. Id. at 690 (citing Bolin v. State, 634 N.E.2d 546, 548 (Ind. Ct. App. 1994)).
75. Cf. Johnson v. State, 671 N.E.2d 1203, 1207 (Ind. Ct. App. 1996) (defendant does not
open door to attacks on his own character when he introduces evidence of victim’s character).
76. See Old Chief v. United States, 117 S. Ct. 644 (1997); United States v. Crowder, 87 F.3d
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extended to the State’s ability to stipulate except in very limited circumstances.
The defendant should not have the moral force of his evidence undermined by
cold stipulations.77
B. Rule 405
In Brooks v. State,78 the defendant argued that the trial court erred when it
refused to admit evidence that a homicide victim had been charged with two
counts of battery. The Brooks court made short work of this argument. The
court started with the general proposition that where self-defense is claimed, the
victim’s character for violence is “pertinent.”79 However, the rules of evidence
only allow evidence of character in the form of opinion or reputation testimony,
unless a person’s character or character trait is an “essential element of a charge,
claim, or defense . . . .”80 In this case, the victim’s character was not an essential
element of the self-defense claim; accordingly, it was not provable by evidence
of specific instances of conduct.81
It must be stressed that Rule 405 only deals with proof of character. If a
victim’s specific instances of conduct are relevant for some other purpose, then
(subject to Rule 403) the evidence should be admissible. For example, the
evidence may bear on the reasonableness of the defendant’s fear of the victim if
self-defense is an issue in the case.82 Of course, in those cases, it must be shown
that the defendant knew of the specific instances of conduct.83
C. Victim’s Prior Sexual History
In Williams v. State,84 the court dealt with a defendant’s claim that the trial
court improperly excluded testimony that an alleged sex crime victim had a
practice of trading sex for cocaine.85 The Williams court concluded that the trial
1405, 1409-14 (D.C. Cir. 1996) (en banc) (collecting cases); see also United States v. Crawford,
130 F.3d 1321, 1323 (8th Cir. 1997).
77. See United States v. Jemal, 26 F.3d 1267, 1273 (3d Cir. 1994) (citing United States v.
Grassi, 602 F.2d 1192, 1197 (5th Cir. 1979)).
78. 683 N.E.2d 574 (Ind. 1997).
79. Id. at 576; see also IND. R. EVID. 404(a)(2).
80. See IND. R. EVID. 405(b).
81. See Brooks, 683 N.E.2d at 576-77 (citing United States v. Keiser, 57 F.3d 847, 856 (9th
Cir. 1995); Johnson v. State, 671 N.E.2d 1203, 1207 (Ind. Ct. App. 1996); see also Cooper, supra
note 42, at 1057 n.46 (discussing Johnson and Keiser).
82. See State v. Nazario, 694 A.2d 666, 668 (R.I. 1997) (victim’s specific instances of
conduct admissible as proof of defendant’s reasonable fear).
83. See id.
84. 681 N.E.2d 195 (Ind. 1997).
85. Professor Cooper discusses the Indiana Court of Appeals’ decision in this case (Williams
v. State, 669 N.E.2d 182 (Ind. Ct. App. 1996)) in last year’s survey. Cooper, supra note 42, at
1057-60.
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court properly excluded the proffered evidence.86
In reaching its conclusion, the Williams court first discussed the purposes of
Rule 41287 and the Rape Shield law.88 The two provisions share the same
purpose: they are designed to shield the victim from “surprise, harassment, and
unnecessary invasions of privacy, and importantly, to remove obstacles to
reporting sex crimes.”89 The court then examined the defendant’s claim of error
solely with respect to the Indiana Evidence Rules. Under Rule 412, defendants
may introduce evidence of their past sexual conduct with the alleged victim, “but
[Rule 412] does not permit a defendant to base his defense of consent on the
victim’s past sexual experiences with third persons. The allegation of
prostitution does not affect this calculus.”90
The court also conditioned the admissibility of evidence of an alleged
victim’s past sexual conduct to that evidence satisfying Rule 401 and Rule 403.91
In other words, even if evidence is admissible under Rule 412, it still must pass
the logical relevance test of Rule 401 and the balancing test of Rule 403. In
Williams, the court found that even if the evidence was admissible under Rule
412, it was properly excluded by the trial court.92 According to the Williams
court, this evidence would have improperly focused the jury on the alleged
previous acts of the victim rather than the defendant’s actions on the night in
question.93
The court then examined the defendant’s Sixth Amendment claims.94 The
86. Williams, 681 N.E.2d at 200.
87.
In a prosecution for a sex crime, evidence of the past sexual conduct of a victim or
a witness may not be admitted, except:
(1) evidence of the victim’s or of a witness’s past sexual conduct with the
defendant;
(2) evidence which shows that some person other than the defendant committed the
act upon which the prosecution is founded;
(3) evidence that the victim’s pregnancy at the time of trial was not caused by the
defendant; or
(4) evidence of a conviction of a crime to impeach under Rule 609.
IND. R. EVID. 412(a).
88. IND. CODE § 35-37-4-4 (1993). The court held that where this statute conflicts with Rule
412, Rule 412 controls. Williams, 681 N.E.2d at 200 n.6; see also McEwen v. State, No. 495009612-CR-731, slip op. at 17-20 (Ind. Apr. 30, 1998). But see Humbert v. Smith, 664 N.E.2d 356,
357 (deferring to legislature on foundational requirements of blood test evidence to establish
paternity that conflict with Rule 803(6)).
89. Williams, 681 N.E.2d at 200.
90. Id. (citing United States v. Saunders, 943 F.2d 388, 392 (4th Cir. 1991)).
91. Id. at 201.
92. Id.
93. Id.
94. The defendant did not raise a claim under article I, section 13 of the Indiana Constitution.
Whether this provision affords defendants more protection than the Sixth Amendment in these cases
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court concluded that the defendant’s Sixth Amendment rights were not violated
in this case because “there was no restriction on the ability of the defense to
present evidence of the incident.”95 The jury was able to evaluate both accounts
of the incident in question.96 Moreover, the proffered evidence did not serve to
explain any of the physical evidence.97 Therefore, under these facts, the
defendant’s constitutional rights were not violated.98 The court went on to stress
that a victim’s past acts of prostitution are not admissible for that reason alone
and that there is no constitutional right to present evidence of a victim’s sexual
activity with others solely on the basis of her past sexual acts.99
V. WITNESSES (ARTICLE VI).
A. Competency
“Every person is competent as a witness except as otherwise provided by
these rules or by act of the Indiana General Assembly.”100 In Newsome v.
State,101 the court faced the question of whether this new rule abrogated preRules case law dealing with the competency of child witnesses. In concluding
that it did not, the court stated, “[W]e think the better reading of Ind.Evidence
Rule 601 is to require the trial court to conduct an inquiry into witness
competency to ensure that minimum standards of competence are met.”102
Specifically, a court will have to determine whether the child “(1) understands
the difference between telling a lie and telling the truth, (2) knows she is under
compulsion to tell the truth, and (3) knows what a true statement is.”103
Judge Hoffman’s concurrence introduces the idea that under Rule 601, a
witness is presumed competent to testify.104 Under that proposition, the party
opposing the witness’s testimony would be forced to rebut the presumption of
competence.105
is an open question.
95. Williams, 681 N.E.2d at 201.
96. Id.
97. Compare id. with Richmond v. Embry, 122 F.3d 866, 871 (10th Cir. 1997) (The
defendant’s Sixth Amendment rights were not violated where the defendant’s counsel attempted
to introduce evidence of victim’s past sexual conduct through his own witness, not by crossexamination of victim or other prosecution witness; thus, the trial court did not deny defendant an
entire relevant area of cross-examination.).
98. Williams, 681 N.E.2d at 201-02.
99. Id.
100. IND. R. EVID. 601.
101. 686 N.E.2d 868 (Ind. Ct. App. 1997).
102. Id. at 872.
103. Id.; see also IND. R. EVID. 603.
104. Id. at 877 (Hoffman, J., concurring) (citing Thornton v. State, 653 N.E.2d 493, 497 (Ind.
Ct. App. 1995)).
105. See id.
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It seems that there is little practical difference between the majority and the
concurrence. In most situations, parties opposing the testimony will have to
make their objections known to the court. The court will then have to determine
whether the witness can offer testimony that has “minimum credibility.”106
B. Rule 609 Impeachment
Rule 609 deals with impeachment of a witness by a prior criminal conviction.
Specifically, it allows a witness to be impeached by conviction of certain
enumerated crimes or crimes involving dishonesty.107 This survey will examine
three cases108 dealing with Rule 609 evidence. In Jenkins v. State,109 the court
evaluated the defendant’s claim that the trial court should have undertaken a Rule
403 balancing analysis before admitting evidence of the defendant’s prior
conviction for robbery. The Jenkins court properly rejected this claim. It
concluded that the Indiana version of Rule 609(a)110 embodied principles from
Ashton v. Anderson,111 which gave the trial court no discretion in admitting this
evidence.112 This holding is supported by the plain language of Rule 609(a),
which uses the mandatory “shall.”113
Rule 609(b) imposes a ten-year time limitation on the use of prior
convictions measured either from the date of conviction or date of release from
incarceration.114 However, under that rule, the court may admit evidence of a
“stale” conviction if the court determines that “in the interests of justice, that the
probative value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect.”115
In Dowdy v. State,116 the court evaluated a defendant’s claim that the trial
court improperly admitted evidence of an “aged” conviction in violation of Rule
106. 3 JACK WEINSTEIN & MARGARET BERGER, WEINSTEIN’S EVIDENCE ¶ 601[01], at 601-09
to -10 (1988); see also United States v. Odom, 736 F.2d 104, 112 (4th Cir. 1984).
107. IND. R. EVID. 609(a).
108. One Rule 609 case decided in the survey period, Cason v. State, 672 N.E.2d 74 (Ind.
1996), was discussed in last year’s survey and therefore will not be discussed here. Cooper, supra
note 42, at 1060. Kent v. State, 675 N.E.2d 332, 338 n.1 (Ind. 1996), also mentions Rule 609. The
Kent court noted that commentary on a defendant’s misdemeanor convictions was permissible
under Rule 609 because the defendant had testified. Unless the misdemeanors involved dishonesty
or false statements, this observation was incorrect. See IND. R. EVID. 609.
109. 677 N.E.2d 624 (Ind. Ct. App. 1997).
110. The court noted that the rule differs from its federal counterpart in that the federal
counterpart expressly makes the admissibility of the evidence subject to a Rule 403 balancing
analysis. Id. at 626-27.
111. 279 N.E.2d 210 (Ind. 1972).
112. Jenkins, 677 N.E.2d. at 627.
113. IND. R. EVID. 609(a); see also Harney & Markavitch, supra note 15, at 898 n.103.
114. IND. R. EVID. 609(b).
115. Id.
116. 672 N.E.2d 948 (Ind. Ct. App. 1996).
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609(b). The defendant in Dowdy was charged with robbery. On crossexamination of the defendant, the prosecution introduced evidence that the
defendant had been convicted of robbery more than ten years before the trial.
At the outset of its analysis, the court properly noted that there is a bias
against the admissibility of aged convictions.117 The court went on to adopt the
Seventh Circuit’s five-part test to determine the admissibility of the aged
convictions.118 This test provides the following non-exclusive list of factors by
which to evaluate the admissibility of an aged conviction:
the impeachment value of the prior crime;
(1)
(2) the point in time of the conviction and the witness’ subsequent
history
(3) the similarity between the past crime and the charged crime;
(4) the importance of the defendant’s testimony; and
(5) the centrality of the credibility issue.119
Seemingly, this test is tailored to instances where the government is impeaching
a defendant who chooses to take the stand in his own defense. In determining
that the prior robbery conviction was admissible to impeach the defendant, the
Dowdy court found it significant that the defendant was charged with robbery.120
This conclusion is open to some criticism. Because the evidentiary value of
the prior conviction is solely for its impeachment value, it would seem that the
similarity between the charged crime and the prior crime would militate against
admissibility; one could reasonably ask why a defendant’s veracity would be
influenced by the similarity of the charged crime to the prior crime. The
similarity between the two crimes invites the inference that, because the
defendant did it before, the defendant is guilty of the charged crime.121 This is
an impermissible inference, yet the Dowdy court seems to embrace just such an
inference. This part of Dowdy ought to be reexamined in the near future.
Rule 609 allows the impeachment of defendants and ordinary witnesses. In
117. Id. at 951.
118. Id.
119. Id. (citing United States v. Castor, 937 F.2d 293, 298-99 (7th Cir. 1991)).
120. Id. at 952 (“Here, because Dowdy was charged with two counts of robbery, the
impeachment value of his 1982 robbery conviction was very significant.”).
121. See United States v. Hernandez, 106 F.3d 737 (7th Cir. 1997) (where impeachment crime
is similar to charged crime, likelihood of prejudice is higher); United States v. Causey, 9 F.3d 1341,
1344 (7th Cir. 1993) (similarity militates against admissibility but is not dispositive); State v.
Kissner, 541 N.W.2d 317, 324 (Minn. Ct. App. 1995) (“In general, the greater the similarity
between the prior offense and the present offense, the greater the reason for not allowing the use
of the prior conviction for impeachment purposes.”); State v. Gentry, 747 P.2d 1032, 1037 (Utah
1987) (similarity between charged crime and prior crime “highly likely to prejudice jurors and
unduly influence their conclusion concerning defendant’s guilt); State v. Gonzalez, 922 P.2d 210,
213 (Wash. Ct. App. 1996) (greater similarity between prior and current offense means greater
potential for prejudice).
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Schwestak v. State,122 the court evaluated a trial court’s refusal to allow the
defendant to impeach a prosecution witness with evidence of a more than ten
year old conviction. The Schwestak court held that this decision is to be
reviewed for an abuse of discretion.123 In affirming the trial court, the Schwestak
court stated, “We cannot see why the probative value of this conviction, which
is more than ten years old, is so high as to overcome the general rule that stale
convictions are inadmissible.”124 It seems that after Schwestak, it is unlikely that
Indiana appellate courts will reverse a trial court’s decision to exclude evidence
of stale convictions absent an extraordinary showing.
VI. OPINION EVIDENCE
A. Lay Witness Opinions
In Kent v. State,125 the Indiana Supreme Court discussed the admissibility of
lay witness opinion testimony. In Kent, the defendant was home alone with his
girlfriend’s two children. When the girlfriend returned home, she found her son
“lying on his bed, pale and white in color, perspiring around the hairline, and
with a blue spot on his neck.”126 When questioned by his girlfriend about the
boy’s injuries, the defendant replied that the boy had fallen into the bathtub and
that he had fallen off the toilet. At trial, the State elicited testimony from a police
officer with emergency medical training that “the condition of the child is not
conducive with a fall in a bath tub.”127
The Kent court held that the trial court did not abuse its discretion in
allowing the testimony. Citing Rule 701, the court concluded that the testimony,
“though not expert, [was] “rationally based on [the officer’s] perception’ and
[was] ‘helpful to a clear understanding’ of [the officer’s] testimony.”128 This
conclusion is certainly open to some criticism. The Kent court may have blurred
the line between lay witness opinion testimony governed by Rule 701 and expert
witness testimony governed by Rule 702.129 Although there is ample authority
122. 674 N.E.2d 962 (Ind. 1997).
123. Id. at 964.
124. Id.
125. 675 N.E.2d 332 (Ind. 1996).
126. Id. at 335.
127. Id. at 338.
128. Id. at 339.
129. See Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1198 (5th Cir. 1995)
(discussing spectrum of Rule 701 cases). Asplundh Manufacturing contains an excellent discussion
of the rationale behind Rule 701. Rule 701 was intended to liberalize the traditional common law
strictures on lay witnesses giving “opinion” testimony. See id. at 1195. The Rule was designed to
deal with situations where
it is impossible or difficult to reproduce the data observed by the witnesses, or the facts
are difficult of explanation, or complex, or are of a combination of circumstances and
appearances which cannot be adequately described and presented with the force and
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for treating the observations of skilled lay observers as falling under Rule 701,
the police officer’s testimony in this case seems to fall under the rubric of expert,
rather than lay, testimony. The cause of injuries seems to be the province of
medical experts, not lay observers. Although there are certain types of
idiosyncratic injuries that lay observers may be able to adequately describe and
characterize to a jury,130 this case did not seem to be one of those. In this case,
the police officer did not appear to have particularized knowledge of the type of
injuries suffered in this case; consequently, allowing him to testify about what
did or did not cause the injuries is problematic.
B. Rule 702
In McGrew v. State,131 the Indiana Supreme Court evaluated the admissibility
of hair comparison analysis. In McGrew, after a hearing concerning the
admissibility of the hair comparison analysis, an Indiana State Police hair
comparison analyst testified at trial. The defendant argued on appeal that the
prosecution had failed to sustain its burden of demonstrating the reliability of the
hair comparison analysis. The Indiana Supreme Court rejected that claim and
determined that the trial court “exercised appropriate discretion as to the
reliability of the proffered hair comparison analysis.”132
The McGrew court analyzed the case as one involving Rule 702(b); however,
at the end of the opinion, the court seemed to agree with the trial court judge who
stated, “[W]hat we’re talking about is not the traditional scientific evaluation.
clearness as they appeared to the witness, the witness may state his impressions and
opinions based on what he observed. It is a means of conveying to the jury what the
witness has seen or heard. If the jury can be put into a position equal vantage with the
witness for drawing the opinion, then the witness may not give an opinion. Because it
is sometimes difficult to describe the mental or physical condition of a person, his
character or reputation, the emotions manifest by his acts; speed of a moving object or
other things that arise in a day to day observation of lay witnesses; things that are of
common occurrence and observation, such as size, heights, odors, flavors, color, heat,
and so on; witnesses may relate their opinions or conclusions of what they observed.
United States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982) (as quoted in JOHN F. SUTTON, JR. & OLIN
GUY WELLBORN III, CASES AND MATERIALS ON EVIDENCE (8th ed. 1992)); see also Asplundh
Manufacturing, 57 F.3d at 1192 (Rule was designed to allow witnesses to give “shorthand
renditions.”).
It is an expansion of the “core” of Rule 701 to allow opinion evidence outside the realm of
common knowledge or understanding. See id. at 1199 (discussing how Rule 701 has been
expanded to deal with matters outside ordinary lay opinion). Kent certainly takes an expansive view
of Rule 701; this expansive view may need reexamination.
130. Compare Kent, 675 N.E.2d at 339 with United States v. Myers, 972 F.2d 1566, 1576-78
(11th Cir. 1992) (stun gun injuries) and Mariscal v. State, 687 N.E.2d 378, 380 (Ind. Ct. App.
1997) (opinion that knife wounds were self-inflicted).
131. 682 N.E.2d 1289 (Ind. 1997).
132. Id. at 1292.
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We are talking about simply a person’s observations under a microscope.”133
Consequently, the opinion is not entirely clear about why Rule 702(b) applies to
hair comparison analysis, nor does it clearly delineate whether hair comparison
analysis is scientific knowledge or technical or other specialized knowledge.
Rule 702 treats scientific evidence differently from technical or specialized
knowledge. Rule 702(a) allows the admission of “scientific, technical, or other
specialized knowledge”134 through expert testimony if such evidence will assist
the trier of fact. Rule 702(b) states that “[e]xpert scientific testimony is
admissible only if the court is satisfied that the scientific principles upon which
the expert testimony rests are reliable.”135 The plain language of Rule 702(b)
suggests that only scientific knowledge is subject to the foundational
requirements of Rule 702(b).136 The McGrew decision simply does not reveal
what standard governs the admissibility of technical or other specialized
knowledge.
Another somewhat puzzling part of the McGrew opinion is the fact that the
court seems to analyze the case under Rule 702(b), which requires the court to
find that the scientific principles upon which hair comparison analysis is based
are reliable. However, the court did not seem to undertake any analysis
concerning the scientific principles upon which hair comparison analysis is
based. In fact, the court quoted the colloquy between the analyst and the
defendant’s attorney: “When asked by the defendant what ‘scientific principle
is used to base the reliability of hair sample technique[,]’ the analyst testified,
‘Scientific principle? It’s just simply a physical comparison of one hair directly
to another one.’”137 From the opinion it appears that the analyst never stated any
scientific principles to support the reliability of hair comparison analysis.138
Perhaps the answer may be in the court’s statement: “Inherent in any
reliability analysis is the understanding that, as the scientific principles become
more advanced and complex, the foundation required to establish reliability will
133. Id. (emphasis added).
134. IND. R. EVID. 702(a).
135. IND. R. EVID. 702(b).
136. The McGrew court stated, “This subsection [i.e., Rule 702(b)] differs from the Federal
Rules of Evidence in its express requirement that expert testimony be based upon reliable scientific
principles.” McGrew, 682 N.E.2d at 1290 (citing Jervis v. State, 679 N.E.2d 875, 881 n.9 (Ind.
1997); Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995)). This cryptic statement can be read to
condition the admissibility of all expert testimony on the satisfaction of Rule 702(b)’s foundational
requirement. This would be contrary to the plain language of Rule 702 which makes a distinction
between scientific knowledge and technical or other specialized knowledge. At first glance, such
a requirement would not seem that onerous—until one considered that many experts are not
scientists, e.g., carpenters, policemen, bricklayers, etc.
137. Id. at 1290.
138. The court noted that the analyst compared a number of different parts and characteristics
of the hair. Id. However, this does not establish the scientific principles upon which hair
comparison analysis evidence is based. Rather, it shows how the comparison was done; it does not
show why the comparison is reliable.
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necessarily become more advanced and complex as well.”139 However, in
McGrew, there was no showing of any scientific principle guaranteeing the
reliability of hair comparison analysis.
McGrew also leaves an important question unanswered, i.e., the boundary
between scientific knowledge—the admissibility of which is governed by Rule
702(b)—and technical or other specialized knowledge, the admissibility of which
is not expressly governed by Rule 702 or any other evidence rule. Despite the
uncertainty in the McGrew opinion, one thing is clear: hair comparison analysis
will be admissible in Indiana.140 The new battleground over this evidence will
be the qualification of the analyst making the comparison.
VII. HEARSAY
A. Out of Court Statements as Non-Hearsay
In Angleton v. State,141 the court stated, “If a statement, the substantive
content of which does not directly assert the declarant’s state of mind, is admitted
to show only the declarant’s state of mind, it is not hearsay.”142 This proposition
raises the issue of the implied assertion and its effect on the hearsay character of
an out of court statement. In Angleton, the court dealt with a variety of out of
court statements made by a murder victim before she died. One example is the
victim’s statement that she wanted a dog, wanted a gun, and wanted to make sure
she got up in the morning. The court held that these statements were not
admitted to show what the victim wanted (i.e., the truth of the matter asserted)
but rather that she was “fearful and unhappy.”143 As such, the evidence served
as circumstantial proof of the declarant’s state of mind.
This decision raises some interesting issues, especially since the Indiana
Supreme Court appeared to reach a contrary view several months earlier in Ross
v. State.144 In general, it seems that the weight of federal authority holds that
implied assertions are not hearsay.145 However, a large number of decisions rest
on the fact that the statement at issue was not intended to be an assertion.146 Out
139. Id. at 1292.
140. For a lengthy discussion of McGrew, see William F. Harvey, Inadvertent Disclosure,
Work-product Privilege, Other Holdings, RES GESTAE, Jan. 1998, at 36.
141. 686 N.E.2d 803 (Ind. 1997).
142. Id. at 808 (citing Dunaway v. State, 440 N.E.2d 682, 686 (Ind. 1982)); Byrd v. State, 579
N.E.2d 457, 463 (Ind. Ct. App. 1991), aff’d in part, vacated in part on other grounds, 593 N.E.2d
1183 (Ind. 1992) (emphasis added)).
143. Id. at 809.
144. 676 N.E.2d 339, 345 (Ind. 1997) (rejecting as hearsay out of court statement that implied
a fact).
145. See State v. Collins, 886 P.2d 243, 245 (Wash. Ct. App. 1995) (collecting cases); see also
Carlton v. State, 681 A.2d 1181, 1184 (Md. Ct. App.) (describing differing approaches by federal
courts), cert. denied, 686 A.2d 634 (Md. 1996).
146. See United States v. Long, 905 F.2d 1572, 1579-80 (D.C. Cir. 1990); United States v.
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of court statements that are not assertions are, by definition, not hearsay.147
In Angleton, it seems that the declarant intended to assert something but just
not exactly what the statement was offered to prove. The statement was then not
offered to prove the truth of the matter asserted and consequently was properly
admitted—at least as far as a mechanical application of the rule is concerned.
However, problems could arise, depending on the closeness of the facts asserted
in the out of court statement and the fact the out of court statement is offered to
prove.148
B. Statements Defined as Non-Hearsay by Rule 801(d)
Rule 801(d) excludes certain out-of-court statements from the definition of
hearsay. Because these statements are defined as nonhearsay, they may be
considered by the fact-finder as substantive evidence on the merits. Two cases
examining this rule merit discussion. In Cooley v. State,149 the issue was the
admissibility of a witness’ out-of-court statement. In that out-of-court statement,
the witness had told police that the defendant “was dealing drugs.” The court
made short work of the State’s argument that the out-of-court statement
constituted the statement of a party-opponent.150 “The reason [the witness’]
statement here is hearsay is because she is testifying about her prior unsworn
statements[;] . . . [w]hat makes this testimony hearsay is that she was testifying
as to what she said on a prior occasion, not as to what [the] defendant said.”151
In Humphrey v. State, 152 a witness gave an unsworn statement to the police
that the defendant had gone out to a truck with “white guys”153 in it, that the
witness heard a noise, and that the defendant returned stating that he had shot one
of them. On the stand, the witness testified that he did not know the defendant
and that he was not with the defendant on the night of the murder. The State then
Lewis, 902 F.2d 1176, 1179 (5th Cir. 1990); United States v. Groce, 682 F.2d 1359, 1364-65 (11th
Cir. 1982); United States v. Zenni, 494 F. Supp. 464 (E.D. Ky. 1980) (Zenni has had a tremendous
influence in this area of the law.); Jim v. Budd, 760 P.2d 782, 784-85 (N.M. Ct. App. 1987);
Collins, 886 P.2d at 245; Guerra v. State, 897 P.2d 447, 461 (Wyo. 1995).
147. See IND. R. EVID. 803(a)(1), (c).
148. See United States v. McGlory, 968 F.2d 309, 332 (3d Cir. 1992) (“We encounter the
problem when: the matter which the declarant intends to assert is different from the matter to be
proved, but the matter asserted, if true, is circumstantial evidence of the matter to be proved.”)
(citing United States v. Reynolds, 715 F.2d 99, 103 (3d Cir. 1983)); see also United States v.
Palma-Ruedas, 121 F.3d 841, 857 (3d Cir. 1997); Brown v. Commonwealth, 487 S.E.2d 248, 251
(Va. Ct. App. 1997) (en banc).
149. 682 N.E.2d 1277 (Ind. 1997).
150. See IND. R. EVID. 801(d)(2). The State argued that the witness’ out-of-court statement
was gleaned from the defendant’s statements to her and therefore constituted the defendant’s
statement.
151. Cooley, 682 N.E.2d at 1282.
152. 680 N.E.2d 836 (Ind. 1997).
153. The shooting victim in this case was white.
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offered the evidence of the prior statement.154
The court began its analysis by concluding that the statement was “‘classic
hearsay’ not ordinarily admissible as substantive evidence.”155 The fact that the
witness was available to testify on the stand did not deprive the statement of its
hearsay character if offered to prove the truth of the matter asserted in the
statement.156 Although the statement was inadmissible as substantive evidence,
it was admissible to impeach the witness as a prior inconsistent statement.157
Because the statement was admissible for one purpose (impeachment) and
inadmissible for another purpose (as substantive evidence), the defendant could
have requested a limiting instruction. However, he did not. In a well-reasoned
discussion of the policy reasons for placing the onus of requesting a limiting
admonition on the parties, the court held that the defendant’s failure to do so
constituted waiver of the issue.158
The Humphrey court also discussed an instruction given to the jury to the
effect that the jury was free to consider any witness’ prior inconsistent statement
as substantive evidence bearing on the defendant’s guilt.159 Because the
defendant did not object to this instruction at trial or on appeal, the court found
that the defendant had waived the issue.160 The court did however state that the
instruction, which mirrored an Indiana Pattern Jury Instruction,161 should “not be
used in trials in this state.”162
Lastly, the court discussed the defendant’s claim that there was insufficient
evidence to support the jury’s finding of guilt. In evaluating the defendant’s
sufficiency claim, the court considered the witness’ prior inconsistent statement
as substantive evidence supporting the verdict because a limiting admonition was
not sought.163 This seems a harsh result, but it is correct. Hearsay in and of
154. This was so even though the witness was called by the State. Rule 607 allows the
impeachment of a witness by any party, including the party calling the witness. See United States
v. Ienco, 92 F.3d 564, 568 (7th Cir. 1996) (discussing Rule 607’s abolition of the common law
voucher rule). For an interesting discussion of this rule and the possibility of the prosecution using
it as a subterfuge to get prior inconsistent statements of a hostile witness in front of the jury, see
United States v. Webster, 734 F.2d 1191 (7th Cir. 1984).
155. Humphrey, 680 N.E.2d at 838.
156. Id.
157. Id. at 838-39; see also IND. R. EVID. 613(b).
158. Humphrey, 680 N.E.2d at 839-40.
159. Cooley and Humphrey also contain an excellent discussion of the Patterson rule (where
the instruction in Humphrey originated) and its demise. Patterson v. State, 324 N.E.2d 482 (Ind.
1975), overruled by Modesitt v. State, 578 N.E.2d 649 (Ind. 1991); see also Kenneth M. Stroud,
Justice DeBruler and the Dissenting Opinion, 30 IND. L. REV. 15, 18 (1997). Previously, in Indiana,
“prior statements made by witnesses who were available to testify under oath were [excluded from
the hearsay rule].” Cooley, 682 N.E.2d at 1281.
160. Humphrey, 680 N.E.2d at 840.
161. 2 IND. PATTERN JURY INSTRUCTIONS (CRIM.) No. 12.19 (2d ed. 1991).
162. Humphrey, 680 N.E.2d at 840.
163. Id. at 840-41 (citing Banks v. State, 567 N.E.2d 1126, 1129 (Ind. 1991); Keller v. State,
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itself is not necessarily unreliable,164 and where it is admitted without objection
or without a proper limiting admonition it may not only support the verdict but
also may be the only evidence sustaining the verdict.165
Cooley and Humphrey clear up some confusion that may have resulted from
a previous decision in this area. In a previous case, the court cited Rule 801(d)
for the proposition that statements offered for the purpose of impeachment were
not hearsay.166 Commentators have aptly criticized Hilton;167 it is therefore
unnecessary to repeat those criticisms here. Suffice it to say that Cooley and
Humphrey are accurate statements of the law and to the extent that Hilton is
inconsistent with them, it should not be followed.
C. Hearsay Exceptions
1. Excited Utterances.—A number of decisions during the survey period
evaluated the excited utterance exception to the hearsay rule.168 In the first of
these cases, Yamobi v. State,169 the court evaluated the admission of a murder
victim’s statement to a police officer as the victim was dying.170 The defendant
claimed that the statement did not fall within the excited utterance exception for
two reasons: 1) the statement was elicited by the police officer’s questions and
2) too much time had elapsed between the statement and the startling event.
The court determined that Rule 803(2) codified the common law excited
utterance exception.171 The court then stated that the statement had to meet a
three part test in order to be admissible: “1) a startling event occurs; 2) a
statement is made by a declarant while under stress of the excitement caused by
the event; and 3) the statement relates to the event.”172 The court also
560 N.E.2d 533, 534-35 (Ind. 1990)).
164. Id. at 840.
165. See United States v. Hugh-Chalmers Toyota-Chevrolet, Inc., 800 F.2d 737, 738 (8th Cir.
1986); United States v. Taylor, 900 F. Supp. 618, 621 n.2 (E.D.N.Y. 1995); State v. Kulmec, 644
A.2d 887, 901-02 (Conn. 1994). But see State v. Corvers, 646 So. 2d 1125 (La. Ct. App. 1994).
166. Hilton v. State, 648 N.E.2d 361, 362 (Ind. 1995). Of course, statements offered for
impeachment are not hearsay because they are not offered to prove the truth of the matter asserted.
See Birdsong v. State, 685 N.E.2d 42, 46 (Ind. 1997). The problem (other than the fact that Rule
801(d) does not speak to this issue) with citing Rule 801(d) for that proposition is that statements
offered under Rule 801(d) are admissible as substantive evidence. Run-of-the-mill prior
inconsistent statements are not admissible as substantive evidence.
167. Harney & Markavitch, supra note 15, at 906 n.157; William F. Harvey, Evidence:
Impeachment by Prior Inconsistent Statements and Hearsay, RES GESTAE, Jan. 1996, at 15
(characterizing Hilton as a bit confused).
168. IND. R. EVID. 803(2).
169. 672 N.E.2d 1344 (Ind. 1996).
170. The statement was not admitted as a dying declaration. See IND. R. EVID. 804.
171. Yamobi, 672 N.E.2d at 1346.
172. Id.
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emphasized that a mechanical inquiry is unjustified.173 The touchstone of
admissibility is “whether the statement is inherently reliable because the
declarant is incapable of thoughtful reflection.”174
Under the facts presented, the court concluded that the trial court correctly
admitted the statement. The fact that the statement was in response to
questioning was only a factor in determining the admissibility of the statement.175
The court noted that the declarant had just been shot and had not talked to anyone
else and that the statement was in response to the police officers first and only
question.176
As for the time elapsing between the event and the statement, the court held
that it was a factor to be considered in evaluating the admissibility of the
evidence. The key to the admissibility was not the amount of time that had
elapsed,177 but whether the declarant was still under the stress of the startling
event.178 “A statement made while in a condition of excitement theoretically
stills the capacity for reflection and prevents fabrication.”179
In Carter v. State,180 the court determined that a shooting victim’s statements
made to a police officer in an emergency room immediately after the shooting
were admissible. The court found that the case was “almost identical” to
Yamobi.181 The court also concluded that the fact that the declarant could not
remember making the statements did not make the statements inadmissible.182
173. Id.
174. Id.; see also United States v. Sowa, 34 F.3d 447, 452 (7th Cir. 1994) (justification for
excited utterance exception is that statements are made under circumstances that “eliminate the
possibility of fabrication, coaching, or confabulation”) (quoting Idaho v. Wright, 497 U.S. 805, 820
(1990)).
175. Yamobi, 672 N.E.2d at 1346; see also Brown v. State, 683 N.E.2d 600, 603 (Ind. Ct. App.
1997) (statement does not lose spontaneity simply because it was elicited by police questioning).
However, the type and manner of the police questioning has some impact on the inherent reliability
of the extra-judicial statements. See Yamobi, 672 N.E.2d at 1346; see also State v. Barnies, 680
A.2d 449, 452-53 (Me. 1996) (collecting cases); State v. Smith, 909 P.2d 236, 241 (Utah 1995)
(significant that questions were “open-ended”).
176. Yamobi, 672 N.E.2d at 1346.
177. However, if the court cannot determine the time between the startling event and the
statement, the evidence should be excluded. See Browne v. State, 933 P.2d 187, 191 (Nev. 1997).
178. Yamobi, 672 N.E.2d at 1346; see also United States v. Sherlock, 962 F.2d 1349, 1352
(9th Cir. 1989) (rape victims had spoken to others and had time to concoct story before allegedly
excited utterance made).
179. City of Dallas v. Donovan, 768 S.W.2d 905, 906-08 (Tex. App. 1989, no writ). Donovan
also contains an excellent analysis of the degree of relatedness of the extrajudicial statement to the
startling event. See also Woodworth v. Estate of Yunkin, 673 N.E.2d 825, 828 (Ind. Ct. App.
1996) (statement unrelated to startling event not admissible).
180. 686 N.E.2d 834 (Ind. 1997).
181. Id. at 837.
182. Id. (citing State Street Duffy’s, Inc. v. Loyd, 623 N.E.2d 1099, 1103 (Ind. Ct. App.
1993)).
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This holding is consistent with federal case law183 and is entirely correct. The
fact that the declarant made the statements is not solely provable by the declarant
remembering having made them. The police officer heard them and could testify
under oath that they were made. Then the only issue becomes the inherent
reliability of the statement. Because it was made under the stress of a startling
event, the statement was inherently reliable and therefore admissible.184
In Carter v. State,185 the court examined the admissibility of an excited
utterance where the issue was the personal knowledge of the declarant. In order
for an excited utterance to be admissible, the declarant must have personally
observed (or perceived) the startling event.186 However, that requirement may be
satisfied by circumstantial evidence.187 In Carter, the court held that the
statement, “Daddy said pow,” satisfied the requirement.188 This leads to the
conclusion that the hearsay statement itself may provide the necessary
circumstantial evidence to demonstrate the personal knowledge of the declarant.
Carter also provides a reminder that the admissibility of the declarant’s out-ofcourt statement is not predicated on the declarant being competent to testify.189
2. Then Existing State of Mind.—In Bacher v. State,190 the Indiana Supreme
Court evaluated the defendant’s contention that the trial court impermissibly
allowed testimony that the murder victim was fearful of the defendant. The
Bacher court treated the testimony as hearsay even though the testimony
contained no reference to the fact that the source of the information was the
victim’s statements to the testifying witness.191 The court held that even if the
183. See, e.g., United States v. Scarpa, 913 F.2d 993, 1016-17 (2d Cir. 1990); United States
v. Iron Shell, 633 F.2d 77, 86 (8th Cir. 1980) (“lack of recall may indicate declarant was under
stress at time of statement”).
184. Carter, 686 N.E.2d at 837. A rule that required declarants to always remember their
excited utterances would be difficult to justify in light of the fact that people often cannot remember
what they said in stressful situations.
185. 683 N.E.2d 631 (Ind. Ct. App. 1997).
186. Id. at 632. But see State v. Lenarchick, 247 N.W.2d 80, 93 (Wis. 1976) (“personal
observation of startling event not required if declarant under influence of startling event”). Another
issue that may occur in this area is the identity of the declarant. See Miller v. Keating, 754 F.2d
507, 510 (3d Cir. 1985) (statement by unidentified declarants not per se inadmissible).
187. Carter, 683 N.E.2d at 632.
188. The declarant was also in the house where the shooting occurred. The court found that
this did not prove that the declarant was in the room where the victim was shot. Id.
189. Id.; see also Morgan v. Foretich, 846 F.2d 941, 946-47 (4th Cir. 1988); State v. Bauer,
704 P.2d 264, 267 (Ariz. Ct. App. 1985).
190. 686 N.E.2d 791 (Ind. 1997).
191. See id. at 797. Justice Sullivan brought up an interesting question: “This raises the nice
evidentiary question of whether a witness’s testimony offered to prove the truth of the matter
asserted that is based solely on information provided by another is stripped of its hearsay character
by removing all reference to the source of the information.” Id. On this point, see 2 MCCORMICK
ON EVIDENCE § 249, at 104 (John William Strong, ed. in chief, 4th ed. 1992) (“[T]he hearsay
objection cannot be obviated by eliciting the purport of the statement in indirect form.). But cf.
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testimony was hearsay, it was admissible as a statement of the victim’s then
existing state of mind.192
This conclusion drew a sharp dissent from Justice Boehm (with Justice
Dickson concurring). As the dissent points out, the court’s analysis is somewhat
troubling. A victim’s state of mind is usually not relevant to prove the
defendant’s conduct; rather, the admissibility of that evidence “must be tied to
some subsidiary issue in the case.”193 In this case, there was no dispute about the
inharmoniousness of the relationship between the between the victim and the
defendant.194 Therefore, according to the dissent, the evidence was not relevant
and therefore inadmissible.195
In this author’s opinion, the dissenting view is sounder. The dissent correctly
points out that the majority’s reliance on Lock v. State196 is problematic. In Lock,
the defendant had made her relationship with the murder victim an issue.197 In
Bacher, there was no such evidentiary dispute.198 Furthermore, in this case, the
majority did not focus on why the facts of this case made the victim’s then
existing state of mind probative. The dissent did so and concluded that the
victim’s fearfulness of the defendant simply was not relevant.
Other jurisdictions have examined evidence admitted under the then existing
Strickland Transp. Co. v. Ingram, 403 S.W.2d 192, 195 (Tex. App. 1966, no writ) (“The hearsay
character of the testimony must affirmatively appear before it may be disregarded on appeal.”).
Justice Sullivan’s observation also raises the issue of the distinction between the hearsay rule and
the requirement of personal knowledge. See 2 MCCORMICK ON EVIDENCE, supra, § 247, at 99.
192. See IND. R. EVID. 803(3).
193. Bacher, 686 N.E.2d at 803 (Boehm, J., dissenting).
194. Compare id. with Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997) (“A victim’s state
of mind is relevant where it has been placed in issue by the defendant.”). In Angleton, the
defendant had “portrayed [the victim] as [his] happily married wife who peacefully spent her time
writing love notes and poems [to the defendant].” Id. In Angleton, the court took pains to
emphasize the fact that the evidence of the victim’s state of mind was particularly probative. This
is to be contrasted with the court in Bacher.
195. Cf. Headlee v. State, 678 N.E.2d 823, 826 (Ind. Ct. App. 1997). “If the fact sought to be
proved under the suggested non-hearsay purpose is not relevant, or it is relevant, but its danger of
unfair prejudice substantially outweighs its probative value, the hearsay objection should be
sustained.” Id. (citing Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994)).
196. 567 N.E.2d 1155, 1159-60 (Ind. 1991).
197. Often, a defendant will offer evidence that his or her relationship with the victim was
good. The suggestion to the jury, of course, is that the defendant did not kill the victim because the
two of them were on good terms. It is readily apparent that the prosecution should be allowed to
rebut this evidence by demonstrating the victim’s state of mind, either through the hearsay
exception provided by Rule 803(3) or through any other permissible means. Angleton is a good
example of this situation.
198. Bacher, 686 N.E.2d at 802 (Boehm, J., dissenting). There are, of course, other situations
where the victim’s state of mind is admissible. See State v. Baca, 902 P.2d 65, 71 (N.M. 1995)
(giving common examples, such as where the defendant claims self-defense or that the victim
committed suicide); see also State v. Nance, 533 N.W.2d 557, 559 (Iowa 1995) (giving examples).
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state of mind exception showing that the victim feared the defendant (as was the
case in Bacher) and have concluded that it should not be used to prove the
conduct of the defendant or identify the defendant as the perpetrator.199 One such
case is Commonwealth v. Qualls.200 In Qualls, the court cogently explained the
dangers of allowing evidence of the victim’s fear of the defendant:
In this context, it seems clear that the Commonwealth’s case against the
defendant may have been significantly enhanced by the introduction of
statements made by one of the victims in the hours, days, and weeks
prior to the murders expressing fear that the defendant was going to kill
him. [The victim’s] statements that he was afraid that the defendant
would kill him could have been seen by the jury as “a prophecy of what
might happen to him.” His statements of fear were certainly “a voice
from the grave casting an incriminating shadow on the defendant.”201
The victim’s fearfulness of a defendant, as opposed to other states of mind,
presents special dangers. The Bacher court does not recognize this reality.
The Bacher dissent does not reveal whether the hearsay evidence passes the
bare logical relevance test of Rule 401. That is certainly an open question, but
the real issue, as illustrated by the case law, is the likelihood of unfair prejudice
when hearsay evidence of the victim’s fear of the defendant is introduced. In the
author’s view, the rule should be that evidence of the victim’s fear of the
defendant should be inadmissible, unless particularized circumstances of the case
make that evidence particularly probative.
3. Business Records Exception.—Stahl v. State,202 involved a challenge to
the admissibility of an affidavit asserted to fall under the business record
exception to the hearsay rule.203 In Stahl, the defendant was charged with
defrauding a bank and theft. According to the State, the defendant withdrew cash
from an ATM without authorization. To prove the lack of authorization, the
State introduced an affidavit of forgery that the bank had required the account
holder to sign so that the account could be recredited.
The court correctly held that the affidavit was not admissible under the
business records exception.204 In doing so, the court embarked on a detailed
199. One exception to this rule would be where the victim’s fear was an essential element of
the crime (e.g., extortion). See, e.g., United States v. Collins, 78 F.3d 1021, 1036 (6th Cir. 1996);
United States v. Adcock, 558 F.2d 397, 404 (8th Cir. 1977).
200. 680 N.E.2d 61 (Mass. 1997).
201. Id. at 67 (quoting United States v. Day, 591 F.2d 861, 883 (D.C. Cir. 1978)); United
States v. Brown, 490 F.2d 758, 781 (D.C. Cir. 1974); see also State v. Charo, 754 P.2d 288, 291-92
(Ariz. 1988); State v. Canady, 911 P.2d 104, 111 (Haw. Ct. App. 1996); Baca, 902 P.2d at 71-72
(“The principal danger is that the jury will consider the victim’s fear as somehow reflecting on the
defendant’s state of mind rather than the victim’s—i.e., as a true indication of the defendant’s
intentions, actions or culpability.”).
202. 686 N.E.2d 89 (Ind. 1997).
203. IND. R. EVID. 803(6).
204. Stahl, 686 N.E.2d at 92.
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analysis of pre-Rules Indiana case law, federal case law and the plain language
of Rule 803(6) itself. The opinion contains an excellent discussion of why
information gained from outsiders is not inherently reliable and therefore does
not fall under the business records exception.205 Such was the case here. The
court also could have simply looked directly to the express trustworthy
requirement in the rule itself to reach the same result.206 Obviously, the source
of this information was not trustworthy. The statement served the source’s
monetary interests, and he was under no business duty to report the facts.207
4. Public Records.—In Ealy v. State,208 the court considered the
admissibility of an autopsy report under Rule 803(8) in a criminal case. Rule
803(8) allows the admission of public documents and records as an exception to
the hearsay rule. However, the rule itself excludes from its scope certain types
of public documents and records.209 At the outset, the court determined that the
autopsy report fell under Rule 803(8)(c), which excludes “factual findings
offered by the government in criminal cases from this hearsay exception.”210
Rather than embracing a literal reading of the rule, the Ealy court embraced
a more flexible rule. Courts evaluating the admissibility of government reports
and documents in criminal cases must first determine if the findings address a
“materially contested issue” in the case.211 If not, then the express requirement
of trustworthiness in the rule is enough to protect the criminal defendant.212
If the findings address a materially contested issue, then the court must
evaluate the “nature of what is objected to.”213 If what is objected to is not clearly
a factual finding, then the evidence is not inadmissible.214 “Such evidence may
be simple listings, or a simple recordation of numbers.”215 If the evidence
contains “factual findings,” then the court must determine whether it was
“prepared for advocacy purposes or in anticipation of litigation. If it was not,
205. Id. at 92; cf. Pierce v. Atchison Topeka & Santa Fe Ry., 110 F.3d 431, 444 (7th Cir.
1997) (business record prepared to memorialize unusual incident and possibly prepared with an eye
toward litigation properly excluded by trial court).
206. Most courts evaluate the source of the information in the business record, i.e., the person
with actual knowledge. Where that person is outside the organization, “Rule 803(6) does not, by
itself, permit the admission of the business record.” United States v. Baker, 693 F.2d 183 (D.C.
Cir. 1982). But cf. United States v. Sokolow, 91 F.3d 396, 403 (3d Cir. 1996) (information may
be supplied by sources outside the organization if organization verifies accuracy of information).
207. Stahl also contains an analysis of the admissibility of the affidavit as a statement affecting
an interest in property. IND. R. EVID. 803(15); see Part VII.C.5 infra.
208. 685 N.E.2d 1047 (Ind. 1997).
209. IND. R. EVID. 803(8)(a)-(d).
210. Ealy, 685 N.E.2d at 1050-51 & n.3.
211. Id. at 1054.
212. Id.
213. Id.
214. See id.
215. Id.
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then the evidence is admissible.”216
Curiously, the Ealy court bases a part of its new test on whether the proffered
evidence contains factual findings (as opposed to simple listings or recordations).
However, earlier in the opinion the court states, “However, as the vagueness of
the definition suggests, any determination as to whether something is a factual
finding would be difficult to make, highly subjective, and difficult to review.”217
Another problem with this opinion is its failure to mention section 34-1-17-7
of the Indiana Code.218 Section 34-1-17-7, in conjunction with Rule 802,
expressly makes autopsy reports admissible. This is so because “[h]earsay is not
admissible except as provided by law or these rules.”219 Because section 34-117-7 is undoubtedly a law, the plain language of Rule 802 operates to make the
evidence admissible.
5. Documents Affecting an Interest in Property.—In Stahl v. State,220 the
court considered the admissibility of the affidavit of forgery described above221
under Rule 803(15)—documents affecting an interest in property. The court first
reviewed the “sparse” case law on the subject and determined that the exception
would apply to documents that were both “ancient” and “dispositive.”222
The court then examined the policy reasons behind this hearsay exception.
First, these documents are usually carefully drawn and are usually not created
with an eye toward the controversy in which they are admitted.223 Second, they
usually have an added assurance that at least one of the parties involved in the
creation of the document is motivated to ensure accuracy.224 Lastly, these
documents often have a great deal of minutiae and often are expected to last for
a long period of time.225 Consequently, it is impossible to expect that witnesses
will be able to testify about the facts recited in the document. Therefore, out of
necessity, the statements in the documents are admissible.226
The court then explained that the exception has been applied to nondispositive documents (i.e., documents that do not create, in and of themselves,
an interest in property).227 Presumably, this results from the fact that “the
216. Id.
217. Id. at 1051-52. The Ealy court’s requirement that the trial court clearly find that a given
piece of evidence is not a factual finding may address its concerns about the difficulty of
determining what constitutes a factual finding. However, a requirement that the trial court be sure
of its decision does little to facilitate appellate review, particularly if there is an abuse of discretion
standard of review.
218. IND. CODE § 34-1-17-7 (1993).
219. IND. R. EVID 802 (emphasis added).
220. 686 N.E.2d 89 (Ind. 1997).
221. See Part VII.C.3, supra.
222. Stahl, 686 N.E.2d at 93.
223. See id.
224. See id.
225. See id.
226. See id.
227. See id. (citing United States v. Weinstock, 863 F. Supp. 1529, 1535 (D. Utah 1994)).
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EVIDENCE
619
parameters of the phrase ‘establish or affect an interest in property’ are not
entirely clear.”228 The Stahl court did not explicitly define these parameters,
apparently leaving that for future cases.229 However, the court did require that,
to be admitted, the document must be executed in circumstances that “generate
confidence in its reliability.”230 Additionally, the court stated that recent and
non-dispositive documents (like the affidavit of forgery) must be scrutinized
more closely to ensure reliability.231 Because the affidavit in this case was
generated in conjunction with the present litigation and there was a motive for
untruthfulness in its creation, it did not have a sufficient guarantee of reliability.
Hence, it was inadmissible.
VIII. BEST EVIDENCE RULE 232
Only one case dealt with the best evidence rule during the survey period. In
Thomas v. Department of State Revenue,233 the court allowed the admission of
a reconstructed tax return where there was no dispute about the accuracy of the
evidence and no evidence that the original return was intentionally destroyed.234
This is a straightforward and correct application of the rule. The case also
provides a reminder that an effective objection to secondary evidence will show
the court an actual dispute about the accuracy of that evidence.
228. Id. (quoting IND. R. EVID. 803(15)).
229. The Stahl court stated that “[i]t is debatable whether the affidavit should be described as
one affecting an interest in property.” Id. at 93-94. The court is correct in its skepticism. The
affidavit did not effect a change in title to the funds, nor did it in a strict sense grant an interest in
those funds.
230. Id. at 94.
231. Id.
232. The Indiana Supreme Court has referred to the best evidence rule as an “original
documents rule.” See Moore v. State, 498 N.E.2d 1, 3 (Ind. 1986).
233. 675 N.E.2d 362 (Ind. T.C. 1997). Thomas was decided before the author joined the
Indiana Tax Court.
234. See IND. R. EVID. 1004.